Page 1
before the iowa industrial commissioner
____________________________________________________________
:
SHIRLEY BAKER, :
:
Claimant, :
:
vs. :
: File No. 974019
SILGAN CONTAINERS CORPORATION,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Shirley
Baker, claimant, against Silgan Containers Corporation,
employer, and CNA Insurance Company, insurance carrier,
defendants, to recover benefits under the Iowa Workers'
Compensation Act as a result of an alleged injury sustained
on July 5, 1990. This matter came on for hearing before the
undersigned deputy industrial commissioner on March 18,
1992, in Burlington, Iowa. The record was considered fully
submitted at the close of the hearing. The record consists
of testimony from claimant, Mark Coppler, Jim Nichols, Ron
Hill, and Anthony Hanson; claimant's exhibits 1 through 2
and 5 through 14; and defendants' exhibits A through G.
issues
Pursuant to the prehearing report and order dated March
18, 1992, the parties have presented the following issues
for resolution:
. Whether claimant sustained an injury on July 5,
1990, which arose out of and in the course of employment
with employer;
. Whether the alleged injury was the cause of
temporary and permanent disability;
. The extent of entitlement to permanent disability,
and;
. Whether claimant's gross weekly earnings should
include a regularly paid quarterly bonus.
Claimant's claim for penalty benefits under Iowa Code
section 86.13 has been bifurcated.
findings of fact
Page 2
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on March 21, 1942, and completed the
twelfth grade of school. Prior to working for employer,
claimant worked as a machine operator, line worker and
school bus driver. She commenced working for employer on
September 12, 1978. Her job duties have been as an
inspector/packer utility person, machine operator and
shipper/warehouser. She was promoted from utility person to
machine operator in December 1983 and worked in that
capacity until April 2, 1990. As a machine operator, she
assembled boxes and put them on conveyor belts. She
testified that she assembled three layers of boxes which
were filled with cans. After putting a lid on top of the
layered boxes, she pushed them into the aisle for the
forklift driver to pick up. There were four boxes of cans
to one layer. Claimant testified that a full box weighed
between 32 and 35 pounds. This was refuted by Ron Hill who
testified that a full box weighed 28 pounds. In any event,
this work required repetitive bending, pushing, pulling, and
lifting. On April 2, 1990, claimant bid for the shipper/
warehouser job. This job required operating a forklift six
out of eight hours a day and other duties as required.
Claimant was taken off work on July 5, 1990, due to back
pain. She had surgery on January 3, 1991, and was released
to return to work on May 15, 1991, with physical
restrictions. Employer has not been able to accommodate
claimant's permanent restrictions and has not returned her
to work. Claimant admitted that she has not looked for
other work since being released for work. There is no
communication between claimant and employer regarding her
employment status.
The pertinent medical evidence of record reveals that
claimant was seen by Richard Berge, M.D., at the Steindler
Orthopedic Clinic on July 5, 1990, for evaluation of lower
back and right leg pain. After conducting a comprehensive
physical examination and reviewing the results of
lumbosacral spine x-rays, Dr. Berge concluded that claimant
had a radiculopathy of the right L5-S1 or L4-L5 dermatome.
He prescribed Ibuprofen and exercise therapy. Claimant
returned to Dr. Berge on July 26, 1990. At the request of
the company doctor, an MRI scan was performed on July 11,
1990, and a lumbar CT scan was taken on July 19, 1990.
There was no evidence of disc protrusion or extrusion on CT
scan. Mild degenerative and hypertrophic changes involving
the facet joints were noted. Her physical examination on
July 26, 1990, revealed pain down the right hip, right thigh
and posterior calf. Physical therapy was reinstituted after
having been denied by the company doctor.
When seen by Dr. Berge on August 27, 1990, claimant's
condition had not improved. An epidural steroid injection
at L3-4 was administered on August 29, 1990, at Mercy
Hospital in Iowa City, Iowa. This was performed by R. F.
Beckman, M.D. The injection worked for a few days, but she
Page 3
experienced a recurrence of her pain shortly thereafter.
Dr. Beckman performed a repeat epidural injection on
September 26, 1990. Claimant reported to Dr. Berge on
October 11, 1990, that this injection gave her no relief
whatsoever.
On November 9, 1990, claimant was admitted to Mercy
Hospital. On November 10, 1990, she underwent a lumbar
myelography and follow-up CT scan. Test results revealed
stenosis at the L4-5 level, the right side somewhat worse
than the left. The CT scan looked even worse than the
myelographic picture. On November 20, 1990, Dr. Berge
scheduled claimant for surgery with Edward Lash, M.D.
Dr. Lash admitted claimant to Mercy Hospital on January
3, 1991, where she underwent L3 and L4 laminectomies and
lateral decompressions. She was discharged on January 12,
1991.
On May 15, 1991, Dr. Lash reported that claimant had
reached maximum medical improvement. He gave her a 20
percent impairment rating and restricted her to light duty
with no lifting in excess of 20 pounds and no vigorous
activities such as jumping or working from heights. Dr.
Lash reported that the 20-pound lifting restriction was
permanent. However, in a letter addressed "To Whom It May
Concern" dated May 15, 1991, Dr. Lash reported that claimant
was released for light duty on May 16, 1991. Restrictions
against climbing ladders, repetitive bending, stooping or
lifting over 25 pounds were imposed (defendants' exhibit D).
Page 4
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on July 5, 1990,
which arose out of and in the course of her employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa
1976); Musselman v. Central Telephone Co., 154 N.W.2d 128,
130 (Iowa 1967). The words "arising out of" have been
interpreted to refer to the cause and origin of the injury.
McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);
Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63,
65 (Iowa 1955). The words "in the course of" refer to the
time, place and circumstances of the injury. McClure, 188
N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in
the course of the employment when it is within the period of
employment at a place the employee may reasonably be, and
while the employee is doing work assigned by the employer or
something incidental to it. Cedar Rapids Community School
District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure
188 N.W.2d at 287; Musselman, 154 N.W.2d at 130.
The Iowa Supreme Court has defined a personal injury
for the purposes of workers' compensation cases. Almquist
v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In
this case the court found that a personal injury, is an
injury to the body, the impairment of health, or a disease,
not excluded by the Workers' Compensation Act, which comes
about, not through the natural building up and tearing down
of the human body, but because of a traumatic or other hurt
or damage to the health or body of an employee. The injury
to the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist court further observed that while a
personal injury does not include an occupational disease
under the Workers' Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
The supreme court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
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with the last employer. McKeever, 379 N.W.2d at 376; See
also Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
The record indicates that claimant was relatively
asymptomatic prior to July 5, 1990. A preemployment
physical on September 12, 1978, revealed no abnormalities of
the lumbar spine. For 13 years with employer she performed
strenuous manual labor requiring repetitive bending,
stooping, climbing, lifting, and carrying. She lost no time
from work due to back problems, nor was she ever placed on
light duty because of a back condition. On or about July 5,
1990, claimant began to experience severe and intractable
lower back and right leg pain. Dr. Berge took her off work
in order to more effectively treat her symptoms. It is
evident that claimant suffered from a gradual injury that
developed over the course of time during the performance of
heavy work activity with employer. Claimant's injury arose
out of and in the course of her employment with employer.
Arising out of implies some causal connection between the
employment and the injury. Volk v. International Harvester
Co., 252 Iowa 298, 106 N.W.2d 649 (1960). In the course of
relates to the time, place and employment circumstances
surrounding the injury. Sister M. Benedict v. St. Mary's
Corp., 124 N.W.2d 548 (1963). Claimant has met her burden
of proof in this regard.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of July 5, 1990, is causally related to the disability on
which she now bases her claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The Iowa Supreme Court has
also observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
The record clearly indicates that claimant has a
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permanent back condition and permanent restrictions as a
result of that condition. Dr. Lash testified in a
deposition on September 16, 1991, that claimant's long
history of heavy labor contributed to her present condition.
He stated that there is a definite association between
degenerative type back conditions and heavy labor. He also
clarified that claimant has a permanent lifting restriction
of 20 pounds. He gave her a permanent functional impairment
rating of 20 percent based on limited spine extension and
forward flexion as well as loss of motion (exhibit 13).
James Cannenberg, M.D., employer's company physician,
testified in a deposition dated January 28, 1992. He stated
that he had no doubt that claimant was injured at work.
After reviewing claimant's prior medical records, he agreed
that she had a healthy back condition until 1983. At that
time, she started working as a machine operator. He noted
that the heavy work she performed with employer contributed
to her spinal stenosis. He testified that, although there
are a variety of causes for spinal stenosis, all except
heavy work over a long period of time can be ruled out in
claimant's case (exhibit 12).
Claimant has met her burden of proof in demonstrating
that she has suffered a permanent impairment which is
causally related to her employment with employer.
The next question to be resolved is the extent of
claimant's industrial disability. Industrial disability was
defined in Diederich v. Tri-City Railway Co., 258 N.W.2d
899, 902 (Iowa 1935) as loss of earning capacity and not a
mere `functional disability' to be computed in the terms of
percentages of the total physical and mental ability of a
normal person. The essence of an earning capacity inquiry
then, is not how much has the claimant been functionally
impaired, but whether that impairment, in combination with
the claimant's age, education, work experience, pre and post
injury wages, motivation and ability to get a job within her
restrictions, if any restrictions have been imposed, have
caused a loss of earning capacity. Olson v. Goodyear
Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich,
258 N.W.2d at 902; Peterson v. Truck Haven Cafe, Inc., 1
Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985);
Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec.
No. 3, 529, 534-535 (1985).
There are no weighting guidelines that indicate how
each of the factors are to be considered. There is no
equation which can be applied and then calculated to
determine the degree of industrial disability to the body as
a whole. It therefore becomes necessary for the deputy or
commissioner to draw upon prior experience and general and
specialized knowledge to make a finding with regard to the
degree of industrial disability. See, Peterson, 1 Iowa
Industrial Commissioner Decisions No. 3, at 658;
Christensen, 1 Iowa Industrial Commissioner Decisions No.
3, at 535.
Claimant was born on March 21, 1942, and was 48 years
Page 7
old at the time of her injury. The fact that claimant was
disabled in the peak earning years of her employment career
makes her disability worse than it would be for a younger or
older employee. Becke v. Turner-Busch, Inc., Thirty-fourth
Biennial Report of the Industrial Commissioner 34 (App.
Decn. 1979); Walton v. B & H Tank Corp., II Iowa Industrial
Commissioner Report 426 (1981); McCoy v. Donaldson Co., File
Nos. 782670 and 805200 (App. Decn. 1989).
Claimant's work history has consisted primarily of
factory/laborer type jobs. Claimant has made no attempt to
participate in vocational rehabilitation or additional skill
training through educational pursuits. Claimant is a high
school graduate and appeared very articulate at the hearing.
She demonstrated little motivation to return to work other
then with employer and has made no attempt whatsoever to
seek employment. These facts tend to lower her industrial
disability.
Claimant's functional impairment rating is 20 percent.
She has significant permanent restrictions which would
preclude her from performing her past work as a machine
operator and as a forklift operator. Employer contends that
permanent light-duty jobs do not exist at the plant.
Based upon the foregoing factors, all of the factors
used to determine industrial disability, and employing
agency expertise, it is determined that claimant sustained a
50 percent industrial disability. It is evident that
claimant has suffered a loss of earnings as well as a loss
of earning capacity as a result of surgery and permanent
restrictions. At the time of her injury, claimant was
earning $10 an hour.
The final issue to be determined in this case is the
proper rate of compensation.
Compensation rates are based on an employee's earnings
and the maximum number of exemptions to which the employee
is entitled. Iowa Code section 85.36 sets out alternate
methods of determining earnings for the purpose of computing
compensation rates, dependent upon the method of payment of
wages and, in some cases, upon the classification of the
employee.
If the employee worked full-time at the time of the
injury, earning the same amount each pay period, the method
of computation depends on the length of time between pay
periods. Iowa Code sections 85.36(1) through (5) provide
the following:
Weekly pay period -- gross weekly earnings equal the
weekly gross amount.
Biweekly pay period -- gross weekly earnings equal the
biweekly gross amount divided by 2.
Semimonthly pay period -- gross weekly earnings equal
the semimonthly gross amount multiplied by 24 and
divided by 52.
Monthly pay period -- gross weekly earnings equal the
monthly gross amount multiplied by 12 and divided by
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52.
Yearly pay period -- gross weekly earnings equal the
yearly gross amount divided by 52.
If the employee worked full-time at the time of the injury,
earning different amounts based on the employee's output
each pay period, Iowa Code sections 85.36(6) and (7) provide
that the gross weekly earnings equal the total earnings
(from the employer for whom the employee was working at the
time of the injury) during the 13 weeks prior to the injury,
divided by 13. The total earnings should exclude premium
pay, but include overtime hours at the straight time hourly
rate. If the employee has not worked for the employer for a
13-week period prior to the injury, the gross weekly
earnings are to be computed by determining the total amount
the employee would have earned had he been employed (and
worked when work was available to similar employees) and
dividing that amount by 13.
The record in this case clearly indicates that claimant
received the same gross wages each pay period. She worked a
total of 84 hours each pay period at the hourly rate of
$10.8570 or $911.99 per pay period. Claimant's gross weekly
wages equal $455.99 rounded out to $456.00 per week ($911.99
divided by 2).
In addition to receiving the same gross wages each pay
period, claimant received a regular quarterly bonus.
Although the amount of the bonus varied every three months,
it was paid regularly. On June 20, 1990, claimant received
a bonus of $483.61.
A bonus which is paid regularly, even though in varying
amounts, is properly included in the determination of rate
under Iowa Code section 85.61(12). Marcks v. Richman
Gordman, File No. 679369 (App. Decn., June 29, 1988).
Claimant is entitled to the bonus even though it was
established unilaterally by the employer. Hendrickson v.
Keller Industries, File No. 931142 (Arb. Decn., December 21,
1990).
A bonus which is an integral part of the defendants' overall
compensation system paid to all employees, which is
available to be paid quarterly, is a regular bonus to be
included in the calculation of rate. Lewis v. Dee Zee Mfg.,
File No. 797154 (Arb. Decn., September 11, 1989).
Claimant's testimony established that the bonus was a
regular bonus and not an irregular bonus. The bonus was
available to all employees who qualified and it was paid
every three months. The bonus provisions were in effect for
each and every pay period. Claimant's testimony was not
controverted, contradicted, rebutted or refuted.
Thus, including the bonus in the rate calculation,
claimant's gross weekly wage would be $493.00 per week
($483.61 divided by 13 equals $37.20 plus $456.00 equals
$493.00).
Including the bonus in the rate calculation, claimant's
gross weekly wage would be $493.00 per week and her rate
would be $309.87 based upon a married person with three
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exemptions. Guide to Iowa Workers' Compensation Claim
Handling, July 1, 1990.
Wherefore, it is determined that claimant is entitled to a
rate of $309.87 per week.
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ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant forty-four point eight
five seven (44.857) weeks of healing period benefits at the
rate of three hundred nine and 87/100 dollars ($309.87) per
week from July 6, 1990 through May 15, 1991, when Dr. Lash
indicated that she had reached maximum medical improvement.
That defendants pay to claimant two hundred fifty (250)
weeks of permanent partial disability benefits at the rate
of three hundred nine and 87/100 dollars ($309.87) per week
commencing May 16, 1991.
That defendants receive credit under Iowa Code section
85.38(2) for previous payments made under a nonoccupational
group plan.
That defendants receive credit for any benefits
previously paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants pay all costs pursuant to rule 343 IAC
4.33.
That defendants file claim activity reports as required
by the agency.
That this file is returned to docket for scheduling for
prehearing and hearing on the bifurcated issue of penalty
benefits under Iowa Code section 86.13.
Signed and filed this ____ day of March, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
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Copies to:
Mr. Robert N Johnson, III
Attorney at Law
627 Avenue G
P.O. Box 388
Fort Madison, Iowa 52627-0388
Mr. Elliott R. McDonald, Jr.
Attorney at Law
P.O. Box 2746
Davenport, Iowa 52809
Page 1
5-1100; 5-1802; 5-1803
3001
Filed March 31, 1992
JEAN M. INGRASSIA
before the iowa industrial commissioner
____________________________________________________________
:
SHIRLEY BAKER, :
:
Claimant, :
:
vs. :
: File No. 974019
SILGAN CONTAINERS CORPORATION,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Defendants dispute that claimant sustained an injury to her
back arising out of and in the course of employment with
employer. The evidence clearly demonstrates that claimant
was asymptomatic prior to July 5, 1990. She had a long
history of heavy work activity with employer and expert
medical evidence established that her back condition was a
result of heavy lifting over a long period of time.
5-1802
Claimant found entitled to healing period benefits from the
time she was taken off work to the time she reached maximum
medical improvement.
5-1803
Claimant awarded 50 percent industrial disability based on
her age (48 years old); education (high school graduate);
inability to return to her prior work as a laborer;
employer's refusal to accommodate her work restrictions;
permanent restrictions of no repetitive bending, stooping,
climbing, or lifting more than 20 pounds; and her lack of
motivation in pursuing other employment.
3001
Claimant received a regular quarterly bonus in addition
to her weekly wages. Defendants argue that the bonus should
not be included in claimant's gross weekly earnings.
Page 2
Claimant prevails on this issue. A bonus which is paid
regularly, even though in varying amounts, is properly
included in the determination of rate under Iowa Code
section 85.61(12). Marcks v. Richmond Gordman, File No.
679369 (App. Decn., June 29, 1988). Claimant is entitled to
the bonus even though it was established unilaterally by the
employer. Hendrickson v. Keller Industries, File No. 931142
(Arb. Decn., December 21, 1990).
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOSEPH SUCHAN, :
:
Claimant, :
:
vs. :
: File No. 974030
PENFORD PRODUCTS/PENWEST, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE HARTFORD, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Joseph
A. Suchan, claimant, against his employer, Penford
Products/Penwest, and The Hartford, insurance carrier, as
defendants.
The record in this case consists of testimony from the
claimant; and, joint exhibits A through L. The case was
heard on June 23, 1992, at Cedar Rapids, Iowa.
ISSUES
The parties submit the following issues for resolution:
1. Whether claimant sustained an injury on February
28, 1989, which arose out of and in the course of his
employment;
2. Whether there is a causal relationship between the
alleged injury and the disability;
3. Whether claimant is entitled to temporary total
disability or healing period benefits, or permanent partial
disability benefits;
4. Whether claimant is entitled to medical benefits
provided under Iowa Code section 85.27; and,
5. Whether defendants are entitled to credit for
benefits previously paid under Iowa Code section 85.38(2).
Page 2
FINDINGS OF FACT
Claimant, Joseph Suchan, was 51 years old at the time
of the hearing. He received a high school diploma, and has
taken several courses at the Kirkwood Community College. He
has received certificates for various maintenance trades,
including sheet metal work, welding, electronics repair and
carpentry.
In the early 1960's, claimant worked at the Weyerhauser
Company, in Wisconsin, and after one year began working for
Farmstead Foods in Cedar Rapids, Iowa. During 26 1/2 years
with the company, claimant worked in the production area for
eight years, sheet metal for 14 years and the electrical
department for five years. Prior to the plant closure,
claimant secured employment with the defendant, Penford
Products/Penwest, where he was hired as a maintenance man in
1987. Initially hired on the second shift, claimant
currently works the day shift. Claimant's position as a
maintenance person requires him to repair and adjust various
machines located throughout the plant. The plant, which
manufactures cornstarch, contains various chemical.
Potential exposure to these chemicals requires various
personnel to use protective devices such as special suits,
respirators, air packs, goggles, gloves and boots. At
various times, the plant has experienced chemical leaks.
On February 28, 1989, claimant was performing his
duties during his regularly scheduled night shift. He
became aware that an exhaust fan on a grinding machine was
not working correctly. Claimant was to check the circuits
and switches to the fan, and proceeded to take a man lift up
four floors of the plant to the roof to check the electrical
circuits and switches leading to the fan.
As claimant was working on the switch to the exhaust
fan, he noticed sulfur dioxide (SO2) emitting from a vent
pipe located a short distance behind him. The SO2 came out
of the pipe, but vaporized when it hit the air temperature.
It becomes heavier than air and stays close to the ground
while creating a cloud. SO2 is hazardous to breathe and has
a very pungent odor. Safety instructions require that
workers wear masks when working around the gas.
The SO2 immediately started to cover the roof area, and
claimant experienced breathing difficulties. He was located
on the southeast end and knew there was an escape ladder on
the north side of the roof. As claimant tried to move over
to the north side of the roof, he continued to experience
breathing problems. He tried to contact his supervisor on a
two way portable radio, and finally had to lean over the
roof in order to gain access to fresh air. Eventually,
claimant's supervisor and several co-workers came up to the
roof and all of them were able to locate the escape ladder
on the north end of the building. Claimant estimated that
he was exposed to the SO2 vapors for five to ten minutes.
Once on the ground, claimant was helped to the break
room and was taken by cab to the trauma center at Mercy
Hospital in Cedar Rapids, Iowa. Claimant testified he was
Page 3
at the hospital for several hours (although Joint Exhibit K
indicates he was at the hospital for approximately one
hour), received medications and oxygen. Emergency room
personnel assessed his condition as "sodium dioxide
inhalation exposure with reactive airway component,
responding to inhalation therapy." (Jt. Ex. K, p. 1). He
was released to return to work on March 1, although claimant
had previously requested three days of vacation and had been
scheduled for four days off prior to the accident. During
the week he was off of work, claimant stated that he had a
"raspy" throat and continued to cough up phlegm.
After one week, claimant returned to work in his same
capacity.
During the next several months, claimant continued to
have shortness of breath, coughing spells, a tightness in
his chest, and experienced increased symptoms when subjected
to small amounts of SO2. The company refused to provide
appropriate medical treatment, and claimant visited his
family physician, Donald W. Hilliard, M.D., in July of 1989.
From July through October, claimant was treated by Dr.
Hilliard who was of the opinion that claimant's problems
were caused by asthma and allergies aggravated by contact
with SO2. Claimant was placed on an extensive program of
steroid therapy and various inhalers. In November 1989,
claimant suffered another toxic exposure, this time to
hydrochloric acid (HCL). He was exposed to the fumes for
approximately 10-15 minutes, and was taken to the emergency
room at the Mercy Hospital. He did not experience great
improvement, and was referred to Richard Zeaske, M.D., for
treatment of an unusual intermittent coughing and wheezing
(Jt. Ex. C, pp. 1-5).
Although some of the doctors indicated that claimant
had preexisting rspiratory problems, claimant denies the
same. Nothing in claimant's past medical records indicates
he sought or received treatment for respiratory problems
prior to the exposure to SO2 (Jt. Ex. A). Dr. Zeaske
performed an allergy workup, the results of which revealed
that claimant was allergic to grasses, ragweed, house dust,
grain mill dust and cat dander (Jt. Ex. E). Claimant was
unaware of these allergies, although admitted that when he
was 14 or 15 years old, he would sometimes cough after
helping to clean out a grain bin.
Dr. Zeaske's diagnosis was that of asthma and acute
bronchitis, and treated claimant with antibiotics, steroids
and various inhalers. In July of 1990, claimant was
referred to Darrell Dennis, M.D., a specialist in pulmonary
medicine. After several appointments, Dr. Dennis agreed
with Dr. Hilliard's diagnosis of obstructive airway disease
(extrinsic asthma) and offered that his pulmonary symptoms
were exacerbated by nonspecific irritants as well as
chemical exposures in the work place including sulfur
dioxide and hydrogen chloride. While admitting that sulfur
dioxide was well-recognized as a factor which can exacerbate
obstructive airway disease, Dr. Dennis was unable to state
Page 4
that work exposures were a major contributing factor to
claimant's persistent pulmonary symptomatology. It should
be noted that in the history given to Dr. Dennis, claimant
denied past symptoms of emphysema; bronchitis; asthma;
bronchiectasis; thromboembolic pulmonary disease;
occupational lung disease; pleural disease; pneumothoraces;
tuberculoses; or unusual pulmonary infections. Results of
x-rays taken by Dr. Dennis were unremarkable (Jt. Ex. D, pp.
1-5).
In April of 1990, claimant saw Joseph Quetsch, M.D.,
and William Dull, M.D. Dr. Quetsch stated that while
claimant's history of allergies was a possible contributing
factor to his respiratory problems, he felt claimant's
exposure to the SO2 was the "proximate cause" of claimant's
health problems. Dr. Quetsch recommended that claimant
minimize his ongoing exposure to SO2, and be followed
annually by a pulmonologist (Jt. Ex. F, pp. 1-2). Dr. Dull
comes to a somewhat different conclusion, and states that
claimant has a prior history of asthma, although he has no
pulmonary function tests to substantiate his conclusion. He
believes that the exposure to the SO2 and the HCL
exacerbated a preexisting condition. He recommended that
claimant avoid future exposure, or consider another
occupation (Jt. Ex. G, pp. 1-3). In December 1990, claimant
sought treatment from the University of Iowa Hospitals and
Clinics. Pope Moseley, M.D. provided treatment from
December 1990 through March 1992. Claimant's symptoms,
persistent cough, shortness of breath and chest tightness
and his treatment, steroid inhalers, bronchodilator
inhalers, Prednisone and various other medications remained
essentially the same. Claimant's therapy has included
treatment of intense dosages of Prednisone for an extended
period of time, followed by several weeks of lesser dosages.
The records corroborate claimant's testimony that when he
begins a "taper" of the drug, his symptoms usually increase.
A report from Dr. Moseley, dated March 10, 992, confirmed
his final diagnosis of reactive airways disease which was
either caused by or exacerbated by claimant's exposure to
the SO2. He went on to state that because claimant had
required medication to prevent coughing and wheezing over
the past three years, it would be likely that claimant would
continue to require medications for an indeterminate period
of time. Furthermore, Dr. Moseley stated that nonspecific
irritants could induce episodes of wheezing and coughing,
and suggested that claimant remain in a relatively dust and
fume-free environment, or be provided with appropriate
respiratory protection if exposed to dust and fumes (Jt. Ex.
I, pp. 15-16). A subsequent report dated May 19, 1992,
confirmed Dr. Moseley's diagnosis of reactive airway
dysfunction syndrome, secondary to sulfur dioxide exposure
(Jt. Ex. L, pp. 1-2).
Page 5
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant
sustained an injury on February 28, 1989, which arose out of
and in the course of his employment.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
On February 28, 1989, claimant was working as a
maintenance person during the night shift for the defendant
employer. His job duties included, but were not limited to,
investigating and repairing various electrical systems and
appliances throughout the manufacturing plant. As claimant
was attempting to repair a broken exhaust fan located on the
plant premises, clearly, claimant was at an appropriate time
and place to fulfill his job duties and he was performing
these duties in a manner suited to perform his assigned job
duties. Therefore, claimant's injury was in the course of
his employment. Furthermore, claimant's injury is found to
have arisen out of his employment, as claimant's exposure to
the sulfur dioxide was a direct result of his job duties.
The next issue to be addressed is whether a causal
relationship exists between claimant's injuries and his
disability and the nature and extent of entitlement to
benefits, if any.
Claimant urges that his continued respiratory problems
are due to the exposure to SO2 on February 28, 1989. In
accordance with Langford v. Kellar Excavating & Grading,
Inc., 191 N.W.2d 667 (Iowa 1971), since the exposure to the
SO2 is the substantial factor in sensitizing claimant to
further aggravation of his obstructive airways disease,
defendants are liable for causing permanent disability to
claimant entitling him to industrial disability benefits.
Defendants contend that claimant suffered an aggravation of
a preexisting condition that did not cause a permanent
injury to claimant's lungs.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of February
28, 1989, is causally related to the disability on which he
now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516,
133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa
296, 18 N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
Page 6
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).
When an aggravation occurs in the performance of an
employee's work and a causal connection is established,
claimant may recover to the extent of the impairment caused
by the aggravation. Barz v. Oler, 257 Iowa 508, 133 N.W.2d
704, 707 (1965).
In the instant case, some of the doctors submit that
claimant's current respiratory problems were preexisting,
and aggravated by his exposure to SO2 while on the job.
Mostly, they diagnose his physical ailment as asthma, and
some place emphasis on allergic reactions. Dr. Moseley felt
that the exposure to SO2 caused claimant's respiratory
problems. The difficulty in assessing the amount of
disability sustained by claimant due to the exposure to the
sulfur dioxide lies with the absence of any physician
involved in the case to adequately assess claimant's
permanent condition. Claimant continues to receive
treatment for his respiratory problems. Small amounts of
toxic gases caused exacerbations, yet the record id devoid
of any evidence that claimant is temporarily or permanently
disabled by the after effects of the exposures. Claimant
Page 7
has missed a total of nine days due to various medical
appointments, not because of any impairment or disability.
And, it appears that when claimant is not directly exposed
to any chemical irritants, or when he is taking his
medications, claimant's respiratory problems have been
relieved.
The only evidence which may suggest that claimant has a
permanent condition is a report from Dr. Moseley, claimant's
treating physician for the past several years, which states
that claimant may need medication for an "indeterminate"
period of time.
Therefore, it is concluded that claimant's injury has
caused periodic medical treatment for an indeterminate
period of time. However, claimant has failed to prove by a
preponderance of the evidence that he ha sustained a
permanent disability.
The next issue to be addressed is whether claimant is
entitled to medical benefits.
Iowa Code section 85.27 provides, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expense incurred for such
services.
Defendants are required to continue to pay for medical
treatment necessary to treat respiratory problems.
ORDER
THEREFORE, it is ordered:
That defendants shall provide appropriate medical
treatment as provided for under Iowa Code section 85.27.
That defendants shall pay the costs of this
proceedings.
Signed and filed this ____ day of July, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Thomas M Wertz
Attorney at Law
4089 21st Ave SW Ste 114
Page 8
Cedar Rapids IA 52404
Mr Greg Egbers
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St
Davenport IA 52801
5-1100
Filed July 28, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOSEPH SUCHAN, :
:
Claimant, :
:
vs. :
: File No. 974030
PENFORD PRODUCTS/PENWEST, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE HARTFORD, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Claimant failed to prove by a preponderance of the evidence
that he sustained a permanent disability related to exposure
to toxic gas at a corn processing plant.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JOSEPH SUCHAN, :
:
Claimant, :
:
vs. :
: File No. 974030
PENFORD PRODUCTS/PENWEST, :
:
Employer, : R E H E A R I N G
:
and : D E C I S I O N
:
THE HARTFORD, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
An arbitration decision proposed by the undersigned
deputy industrial commissioner was filed on July 28, 1992.
On August 3, 1992, claimant filed a motion for
rehearing for the following reasons:
1. That the evidence presented and in the Analysis and
Conclusion of Law on page 7 of the Arbitration Decision
finds that the claimant has missed a total of nine days of
work due to various medical appointments.
2. The Arbitration Decision orders the defendants to
provide the appropriate medical treatment as provided in the
Iowa Code section 85.27.
3. Claimant submits that further clarification should
be provided with respect to providing "appropriate medical
treatment." Claimant submits the defendants are responsible
for past medical expenses incurred with respect to the
compensable condition, including compensation for the nine
days missed for medical appointments, and that the
defendants are responsible for any an all ongoing medical
expenses, including time missed from work for appointments.
Defendants resisted the motion for rehearing, but the
undersigned granted the motion for a rehearing.
To clarify the decision and address claimant's motion,
this writer will briefly analyze the issue on several
levels.
The first issue to be addressed is whether claimant's
nine days off of work should be compensated as a medical
benefit.
In order for claimant to recover compensation for time
missed due to medical appointments, he must fall within the
provisions of Iowa Code section 85.27, which states in
Page 2
relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expenses incurred for
such services....
....
For purposes of this section, the employer is
obliged to furnish reasonable services and
supplies to treat an injured employee, and has the
right to choose the care. The treatment must be
offered promptly and be reasonably suited to treat
the injury without undue inconvenience to the
employee. If the employee has reason to be
dissatisfied with the care offered, the employee
should communicate the basis of such
dissatisfaction to the employer, in writing if
requested, following which the employer and the
employee may agree to alternate care reasonably
suited to treat the injury. If the employer and
employee cannot agree on such alternate care, the
commissioner may, upon application and reasonable
proofs of the necessity therefor, allow and order
other care.
Clearly, time off from work was not intended to fall
within the provisions of medical benefits. The statute
provides no such benefits for time off of work to visit a
doctor for treatment of a work injury, but merely allows an
injured worker to receive reasonable transportation
expenses. Claimant is seeking disability for the time off
of work and is attempting to label the compensation as a
medical benefit. Absent statutory direction or case law
authority for such an award, claimant is not entitled to
compensation as a medical benefit for lost time from work
due to medical appointments.
Neither is claimant entitled to healing period benefits
for the time off of work due to medical appointments.
Claimant has failed to prove by a preponderance of the
evidence that he sustained a permanent injury and would
therefore not be entitled to healing period benefits.
Likewise, recent case law has been instructive in denying
healing period benefits for time off of work necessitated by
medical appointments. See, Thilges v. Snap-On Tools
Corporation, File Nos 857208, 894337, 896606, 905195, 905196
(Arbitration Decision September 27, 1991).
Likewise, temporary total disability benefits are not
awarded where an injured worker misses work due to doctor
appointments. Temporary total disability benefits
contemplate payments to an employee who is disabled and
unable to return to regular work or work substantially
similar to the employment in which claimant was engaged at
Page 3
the time of the injury.
Additionally, it should be noted that if claimant
received sick leave for the time missed, this would
constitute salary in lieu of workers' compensation, and the
employer would receive credit for money paid.
Claimant Suchan will not be able to recover
compensation for the nine days of work missed due to medical
appointments, nor will he be able to recover or receive
compensation for future time missed due to doctor/medical
appointments.
Signed and filed this ____ day of September, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Thomas M Wertz
Attorney at Law
4089 21st Ave SW Ste 114
Cedar Rapids IA 52404
Mr Greg A Egbers
Attorney at Law
600 Union Arcade Bldg
111 E Third St
Davenport IA 52801-1596
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JOHN R. CURTIS, :
:
Claimant, :
:
vs. :
: File No. 974044
NORTHERN GRAVEL, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by John
Curtis, claimant, against Northern Gravel Company, employer,
hereinafter referred to as Northern Gravel and Liberty
Mutual Insurance Company, insurance carrier, defendants, for
workers' compensation benefits as a result of an alleged
injury on July 31, 1990. On September 16, 1992, a hearing
was held on claimant's petition and the matter was consid
ered fully submitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. If the alleged injury is found to have caused per
manent disability, the type of disability is an industrial
disability to the body as a whole.
2. At the time of injury claimant was single and he
was entitled to one exemption.
3. With reference to the requested medical benefits,
it was stipulated that the medical providers in this case
would testify that their charges were reasonable and defen
dants are not offering contrary evidence.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
Page 2
I. Whether claimant received an injury arising out
of and in the course of employment;
II. The extent of claimant's entitlement to disability
benefits; and,
III. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility and the credibility
of claimant's wife at issue during cross-examination as to
the nature and extent of the injury and disability and the
relative severity of an intervening injury at home while
installing a screw into a wall. From observing their
demeanor while testifying, claimant and his wife are found
credible.
Claimant worked for Northern Gravel from January 1990
until approximately one week after the alleged work injury
herein. At Northern Gravel, claimant was a laborer whose
dues involved filing and palletizing sand bags and driving a
fork lift truck.
On or about July 31, 1990, claimant injured his back
while loading 100 pound sand bags into a customer's vehicle.
This injury arose out of and in the course of claimant's
employment at NG. Claimant's testimony about this incident
which he said was witnessed by a fellow employee and
reported to his supervisor was unrebutted by defendants.
Claimant received immediate treatment for this injury and a
history of this injury was provided to the treating
physician.
At the time of injury, claimant experienced severe back
pain and a fellow employee completed loading the customer's
bags. After resting, claimant continued to work the rest of
the day on light duty driving a fork lift.
Claimant was first treated by Ronald Olson, M.D., for
thoracic lumbar strain. Dr. Olson did not identify any
other cause for the injury other than claimant's lifting
incident at work. After returning to work the following
Monday, he could not finish and left to go home and rest.
He then returned to work on August 6 and worked until the
13th.
On the 13th, claimant experienced another episode of
severe back pain while attempting to install a screw into a
plaster board wall at home. Claimant stated that it felt
like he had "strangled" a nerve in his leg. Claimant went
to a hospital emergency room the next day for treatment.
The emergency room report states that claimant denied any
recent injury to his back and only related the onset of pain
Page 3
following the incident at home on the 13th.
The injury of July 31, 1990 was a significant causative
factor in precipitating claimant's absence from work from
August 13, 1990 through May 1, 1991 at which time he was
released to return to work by his treating physicians. On
the 13th, claimant went to William Catalona, M.D., reporting
the incident the night before. Dr. Catalona referred
claimant to the Spinal Diagnostic and Treatment Center in
the Orthopedic Department of the University of Iowa
Hospitals and Clinics. Claimant was ultimately diagnosed as
suffering from recurrent herniation of the disk and from
development of scar tissue from a previous surgery.
Claimant ultimately was treated with additional surgery.
After a prolonged recovery, part of which involved wearing a
body cast, claimant returned to work as a pest exterminator,
a job he had held in the past.
The finding of causation connection between the July
31, 1990 injury and the surgery in 1990 was based upon the
views of the treating physician, James N. Weinstein, D.O., a
professor of orthopedic medicine at University Hospitals.
Dr. Weinstein noted that claimant had prior back surgery as
a result of a high school football injury in 1980 and was
susceptible to further injury. He also noted that claimant
had recurrent back pain between 1980 and 1990. Although
there was an intervening event involving screwing a screw
into a wall, Dr. Weinstein stated that these herniations are
not the result of any one event but a series of events. It
is clear that the lifting of 100 pound bags of sand is at
least one of the significant events immediately prior to the
onset of the severe pain which necessitated the additional
surgery. Dr. Catelona's opinion that it was not possible to
opine which event caused the herniation was not as convinc
ing as the more qualified Dr. Weinstein.
It is also found that the work injury of July 31, 1990
was a significant causative factor in precipating signifi
cant additional permanent impairment to the body as a whole.
Dr. Weinstein estimated that the impairment would be approx
imately 20-22 percent, 8-10 percent due to the prior 1980
surgery and 10-12 percent due to the new injury and result
ing 1990 surgery. The exact impairment rating is unneces
sary to an industrial disability case such as the one at
bar. More importantly, claimant is now permanently
restricted to lifting under 50 pounds, a restriction he did
not have prior to the injury herein.
With reference to industrial disability factors other
than impairment, claimant's physical limitations today pre
vent a return to the Northern Gravel job he had at the time
of the injury or to any other heavy labor job requiring
lifting over 50 pounds. Claimant has only an eleventh grade
education, having dropped out of high school in his senior
year. Claimant's past employment consists largely of heavy
duty work he cannot perform.
However, claimant had potential for vocational rehabil
itation and has done so. He has returned to a former job of
pest exterminator and was able to obtain the certifications
Page 4
necessary to maintain this job. This job is suitable to his
disability as he is not required to lift over 25 pounds.
The job appears stable.
Claimant has not suffered a loss of earnings from the
injury other than for the time lost from work during treat
ment of the injury. At Northern Gravel, he earned $4.36 per
hour and worked irregular hours from 32 to 44 hours a week.
At his pest exterminator job, he earns $6.50 per hour with a
regular work week of 40 hours with 10-25 overtime hours on a
"pretty consistent" basis. Clearly, claimant is earning
much more today than he ever has in the past.
From examination of all of the factors of industrial
disability, it is found that the work injury of July 31,
1990 was a cause of only a mild three percent loss of earn
ing capacity.
It is found that the medical expenses requested are
causally connected to the July 31, 1990 injury. Due to the
fact that they were rendered by clearly well qualified
physicians, absent contrary evidence, it is found that the
treatment was reasonable and necessary.
From a review of exhibit 10, it is found that
claimant's gross earnings in the 13 weeks prior to the work
injury averaged $172.22 per week. There was a total of 487
straight time hours and 26.5 overtime hours. The average
was computed using the straight time rate for overtime
hours.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a prepon
derance of the evidence that claimant received an injury
arising out of and in the course of employment. The words
"out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time and place and
circumstances of the injury. See generally, Cedar Rapids
Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v.
DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63
(1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected
injury which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. U.S. Gypsum,
252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited
therein.
In the case sub judice, claimant demonstrated a work
injury by a preponderance of the credible evidence from his
own testimony and the views of his treating physician at the
University.
II. As the claimant has shown that the work injury
was a cause a permanent physical impairment or limitation
upon activity involving the body as a whole, the degree of
permanent disability must be measured pursuant to Iowa Code
section 85.34(2)(u). However, unlike scheduled member dis
abilities, the degree of disability under this provision is
not measured solely by the extent of a functional impairment
Page 5
or loss of use of a body member. A disability to the body
as a whole or an "industrial disability" is a loss of earn
ing capacity resulting from the work injury. Diederich v.
Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A
physical impairment or restriction on work activity may or
may not result in such a loss of earning capacity. Examina
tion of several factors determines the extent to which a
work injury and a resulting medical condition caused an
industrial disability. These factors include the employee's
medical condition prior to the injury, immediately after the
injury and presently; the situs of the injury, its severity
and the length of healing period; the work experience of the
employee prior to the injury, after the injury and potential
for rehabilitation; the employee's qualifications intellec
tually, emotionally and physically; earnings prior and sub
sequent to the injury; age; education; motivation; func
tional impairment as a result of the injury; and inability
because of the injury to engage in employment for which the
employee is fitted. Loss of earnings caused by a job trans
fer for reasons related to the injury is also relevant. See
Peterson v. Truck Haven Cafe, Inc., (Appeal Decision,
February 28, 1985).
A showing that claimant had no loss of actual earnings
does not preclude a finding of industrial disability. See
Michael v. Harrison County, 34 Bien Rep., Ia Ind. Comm'r
218, 220 (Appeal Decision 1979). Bearce v. FMC Corp., 465
N.W.2d 531 (Iowa 1991) only held that continued employment
with no loss of earnings is significant evidence that should
not be overlooked in measuring loss of earning capacity.
In the case sub judice, it was found that claimant suf
fered a three percent loss of his earning capacity as a
result of the work injury. Such a finding entitles claimant
to 15 weeks of permanent partial disability benefits as a
matter of law under Iowa Code section 85.34(2)(u) which is
three percent of 500 weeks, the maximum allowable number of
weeks for an injury to the body as a whole in that
subsection.
Claimant's entitlement to permanent partial disability
also entitles him to weekly benefits for healing period
under Iowa Code section 85.34 from the date of injury until
claimant returns to work; until claimant is medically capa
ble of returning to substantially similar work to the work
he was performing at the time of injury; or, until it is
indicated that significant improvement from the injury is
not anticipated, whichever occurs first. It was found that
claimant was off work from August 13, 1990 through May 1,
1991 and benefits will be awarded accordingly.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
order of reimbursement if he has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988). The expenses requested will be awarded to claimant.
Page 6
IV. The parties' dispute as to rate of compensation
centers around the calculation of his gross wages. As
claimant's hours varied greatly from week to week, the pre
vious 13 weeks must be utilized to calculate the rate under
Iowa Code section 85.36(6). However, overtime pay is
included only at the straight time pay rate. Rule 343 IAC
8.2.
It was found that claimant's gross earnings averaged
$172.22 per week. It was stipulated that claimant was sin
gle and entitled to one exemption at the time of injury.
Therefore, according to the Industrial Commissioner's pub
lished rate booklet for this injury, claimant's weekly rate
of compensation is $110.82.
ORDER
1. Defendants shall pay to claimant fifteen (15) weeks
of permanent partial disability benefits at the rate of one
hundred ten and 82/l00 dollars ($110.82) per week from May
2, 1991.
2. Defendants shall pay to claimant healing period
benefits from August 13, 1990 through May 1, 1991 at the
rate of one hundred ten and 82/l00 dollars ($110.82) per
week.
3. Defendants shall pay the medical expenses listed in
the prehearing report. Claimant shall be reimbursed for any
of these expenses paid by him. Otherwise, defendants shall
pay the provider directly along with any lawful late payment
penalties imposed upon the account by the provider.
4. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
5. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
6. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
7. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of December, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 7
Copies To:
Mr. John E. Wunder
Attorney at Law
210 Cedar Street
Muscatine, Iowa 52761
Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport, Iowa 52801
Mr. David W. Newell
Attorney at Law
323 East Second Street
P O Box 175
Muscatine, Iowa 52761
5-1803
Filed December 29, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
JOHN R. CURTIS, :
:
Claimant, :
:
vs. :
: File No. 974044
NORTHERN GRAVEL, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL HAMILTON,
Claimant, File No. 974052
vs. D E N I A L O F
SMITHWAY DRIVER LEASING, INC. P E T I T I O N F O R
and SMITHWAY MOTOR EXPRESS
INC., D E C L A R A T O R Y
Employers, R U L I N G
and
CIGNA INSURANCE COMPANY and
ROYAL INSURANCE COMPANY OF
AMERICA,
Insurance Carriers,
Defendants.
____________________________________________________________
The Petitioner, Royal Insurance Company (hereinafter
Petitioner-Royal), seeks a declaratory ruling.
Petitioner-Royal presents the following question:
In the event that the Insurance Company of North America
(CIGNA) and its insured, the actual employer of the
Claimant, Smithway Driver Leasing, Inc., have their Motion
for Summary Judgment, filed recently (served October 1,
1992), sustained on the basis of the statute of limitations
under Section 85.26, the Code, and, the Commissioner
determines that Smithway Motor Express is the employer of
this Claimant for compensation purposes because of the event
of February 27, 1989, would the Insurance Company of North
America (CIGNA) nonetheless still be responsible to pay for
any benefits ordered to be paid to the Claimant under the
Iowa Workers' Compensation Laws under the circumstances of
this case?
A response to the petition filed by Petitioner-Royal has
been filed by CIGNA Insurance Company. The record in this
matter also shows that on October 13, 1992 the motion for
summary judgment was denied.
Declaratory rulings are governed by rule 343 IAC 5 and rule
343 IAC X (Declaratory Rulings). Rule 343 IAC X.5
(Declaratory Rulings) provides in relevant part:
The agency may refuse to issue a declaratory ruling for
good cause. Good cause includes, but is not limited to, the
following reasons:
Page 2
....
4. The questions presented by the petition are also
presented in a current rule making, contested case, or other
agency or judicial proceeding, that may definitively resolve
them.
5. The questions presented by the petition would more
properly be resolved in a different type of proceeding or by
another body with jurisdiction over the matter.
....
7. There is no need to issue a ruling because the questions
raised in the petition have been settled due to a change in
circumstances.
....
9. The petition requests a declaratory ruling that would
necessarily determine the legal rights, duties, or
responsibilities of other persons who have not joined in the
petition or filed a similar petition and whose position on
the questions presented may fairly be presumed to be adverse
to that of petitioner.
The petition is refused for the following reasons. The
petition and agency records clearly indicate that there is a
dispute as to whether the claimant (Earl Hamilton) in the
contested case currently pending before the agency, was an
employee of Smithway Motor Express (SMX) or Smithway Driver
Leasing Inc. (SDL) or both. Various filings have indicated
that there are three possible insurance carriers for SMX.
There appears to be a dispute not only which employer may be
liable but also which insurance carrier is the employer's
insurance carrier at the time of the injury.
The question presented by Petitioner-Royal is also presented
in a contested case and that contested case may resolve the
question. The question presented by the petitioner would
more properly be resolved in a contested case hearing where
the parties have an opportunity to present evidence and
engage in discovery and cross-examination.
The question raised in the ruling assumed that the motion
for summary judgment would be sustained. The motion for
summary judgment was denied and therefore there has been a
change in circumstances.
Petitioner-Royal requests a determination of the
responsibilities of another insurance company, Insurance
Company of North America (CIGNA). CIGNA's response to the
declaratory ruling clearly indicates that its position is
adverse to Petitioner-Royal.
Ruling on Petitioner-Royal's petition for declaratory ruling
is therefore refused.
Signed and filed this ____ day of November, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 3
Copies To:
Mr. James C. Huber
500 Liberty Bldg.
418 6th Ave.
Des Moines, Iowa 50309-2421
Mr. Jerry L. Schnurr III
P.O. Box 952
Fort Dodge, Iowa 50501-3954
Ms. Deborah A. Dubik
Mr. Craig A. Levien
600 Union Arcade Bldg.
111 East 3rd St.
Davenport, Iowa 52801-1596
Mr. Tito Trevino
P.O. Box 1680
Fort Dodge, Iowa 50501
4300
Filed November 4, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL HAMILTON,
Claimant, File No. 974052
vs. D E N I A L O F
SMITHWAY DRIVER LEASING, INC. P E T I T I O N F O R
and SMITHWAY MOTOR EXPRESS
INC., D E C L A R A T O R Y
Employers, R U L I N G
and
CIGNA INSURANCE COMPANY and
ROYAL INSURANCE COMPANY OF
AMERICA,
Insurance Carriers,
Defendants.
____________________________________________________________
4300
Petition for declaratory ruling refused on the grounds of
rule 343 IAC X.5(4), (5), (7) and (9). Question asked by
petitioner would be better resolved in a contested case
proceeding. There was a factual dispute who the employer
was and who the insurance carrier was. The petition
requested a determination of the responsibilities of an
insurance company who disputed its liability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LORA CLAYTON, :
:
Claimant, :
:
vs. :
: File No. 974059
MIDLAND INTERNATIONAL :
TILEWORKS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Lora
Clayton against Midland International Tileworks, employer,
and Home Insurance Company, insurance carrier, both as
defendants. Ms. Clayton bases her claim upon an alleged
injury occurring on October 5, 1990.
The case was heard and fully submitted at Des Moines,
Iowa, on July 1, 1992. The record consists of testimony
from the claimant, Russell Jones, Nemat Emamian, and Glen
Strang; and, joint exhibits 1 through 11.
ISSUES
The parties submit the following issues for resolution:
1. Whether claimant sustained an injury on October 5,
1990, which arose out of and in the course of her employment
with Midland International Tileworks;
2. Whether there is a causal relationship between the
alleged injury and claimant's disability;
3. Whether claimant is entitled to temporary
disability or healing period benefits or permanent partial
disability benefits;
4. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27; and,
5. Claimant's correct workers' compensation rate.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Page 2
Claimant, Lora Clayton, was born on September 16, 1960.
At the time of the hearing, she was 31 years of age.
Currently, she is not married and has two dependent
children, ages 13 and 9.
Claimant did not graduate from high school, but
obtained her GED in October of 1985. She has taken
correspondence courses in bookkeeping and general
accounting, and is familiar with a ten key adding machine.
Claimant's employment history has been concentrated in
day care and house cleaning services. As a day care worker,
her duties have included meal preparation and supervising
children. Currently, claimant has been establishing her own
business improvising housekeeping services.
In June of 1990, claimant began working for the
defendant, Midland International Tileworks, a company that
manufactures ceramic floor tiles. Her beginning wages were
$6.45 per hour, and after an initial 90 day probationary
period, she received a $.54 per hour increase.
Claimant's job duties on the production line included
watching the equipment to insure that it ran properly;
stacking tiles that had been glazed; and, maintaining the
large tanks that held the colored glaze. Claimant's
position required her to fill the glazing machines, called
agitators, by lifting five gallon buckets filled with liquid
glaze that was poured into the machine.
Tiles that were deemed unsuitable for sale were taken
off of the assembly line and thrown in a dumpster. Claimant
would either throw the defective tile over the conveyor line
or walk around the line and put it in the dumpster. The
number of discarded tiles varied on a daily basis.
On October 5, 1990, claimant was using a five gallon
bucket to fill an agitator tank filled with glaze. She
climbed a three foot stepladder and steadied herself with
her left hand while using her right arm to pour the contents
of the bucket into the tank. As claimant was pouring the
glaze into the agitator, she "noticed" a severe pain,
numbness and tingling in her right arm and shoulder.
Claimant continued to work and on October 7, 1990, went
to see her family physician at the Redfield Clinic, Narong
Jarasvivoj, M.D. After an examination, the doctor thought
claimant had a shoulder strain and prescribed Voltaren for
relief. Claimant returned to the clinic the following day
with persistent right shoulder pain. Dr. Jarasvivoj
administered ultrasound and told claimant to see an
orthopedic specialist. results of the x-rays taken of the
right shoulder on October 13, 1990, were unremarkable.
Claimant continued to seek treatment at the clinic, and was
taken off of work until October 15, 1990 (Jt. Ex. 5, pp. 56-
59, 66).
On October 25, 1990, claimant visited Rodney Johnson,
M.D., an orthopedic specialist at Central Iowa Orthopedics,
Page 3
in Des Moines, Iowa. After an examination revealed pain at
the acromioclavicular joint, Dr. Johnson ordered an MRI of
the cervical spine and a bone scan of the right shoulder.
Included in Dr. Johnson's notes is claimant's history of
intermittent discomfort of the neck muscles of the right
side, the muscles of the trapezium and occasional aching in
the right shoulder. His notes go on to state that these
symptoms became worse when claimant was lifting at work.
Results of the MRI showed disc degeneration at the C5-6
level, but no herniation. The bone scan showed increased
uptake at the AC joint. Dr. Johnson related the symptoms to
claimant's work activities of repetitive movements. She was
released to return to work (Jt. Ex. 6, pp. 70-73).
From October 12 through October 29, 1990, claimant
underwent physical therapy (Jt. Ex. 9, pp. 94-98).
Claimant sought a second opinion from Kevin Smith, M.D.
His notes dated November 6, 1990, indicate that claimant
displayed full range of motion of the shoulder but that
there was tenderness in the anterior part of the shoulder
joint. Claimant also stated that her right hand and arm
occasionally became numb. Dr. Smith released claimant to
return to work but restricted her work activities to no
overhead lifting (Jt. Ex. 7, pp. 74-75).
Claimant returned to the clinic on November 9 and
displayed full range of motion but still had persistent
pain. Her work restrictions were expanded to include no
lifting of more than ten pounds with her right hand. When
claimant returned to the clinic on November 16, she
complained that her job duties at the plant required her to
work outside of her restrictions, but that she was willing
to be released to return to work without restriction. An
examination showed that claimant had full range of motion of
her shoulder and decreased pain (Jt. Ex. 7, p. 76).
Claimant returned to Dr. Smith during November and
December 1990. Although he released her to return to
regular duties, he emphasized that she should not be lifting
more than 30 pounds and should be performing no overhead
work. In January of 1991, Dr. Smith noted that claimant had
quit her job because functions of her position required
physical activities outside of her restrictions. She
continued with home exercises and heat therapy, and visited
the clinic on a monthly basis through May of 1991, when she
received a trigger point injection (Jt. Ex. 7, pp. 81-84).
There is a notation that claimant exacerbated her
symptoms while scrubbing floors in February of 1991 (Jt. Ex.
7, p. 81).
In July 1991, claimant underwent an independent medical
evaluation performed by Jerome Bashara, M.D., an orthopedic
specialist. He ordered an MRI of the right shoulder, the
results of which showed an incomplete tear of the rotator
cuff with a mild impingement syndrome. Dr. Bashara also
diagnosed chronic rotator cuff tendinitis related to her
work activities. Based on his findings, he gave claimant an
Page 4
8 percent permanent partial impairment rating of the right
upper extremity; 6 percent was assessed to restricted range
of motion and 2 percent was assessed for pain in the partial
tear (Jt. Ex. A, pp. 90-93).
In June 1992, claimant underwent a functional capacity
evaluation administered by Dr. Smith. He reviewed the MRI
of the cervical spine and diagnosed rotator cuff tendinitis,
a work-related permanent condition. Based on various tests,
which demonstrated loss of motion, function and strength of
claimant's right shoulder, he was of the opinion that she
had a 4 percent functional impairment of the right upper
extremity. She was able to perform jobs in the medium heavy
category, described as lifting 50 to 80 pounds maximum, with
frequent lifting of 40 pounds (Jt. Ex. 7, pp. 85-89).
Claimant's past medical problems include a history of
headaches, for which claimant has been admitted to an
emergency room on at least one occasion, and persistent neck
pain (Jt. Exs. 10 and 11).
Russell Jones, an employee who works on the glaze line
at Midland's plant, testified on behalf of defendants. He
explained that his job was similar to claimant's and that he
did not consider the duties to be repetitive, and stressed
that the job did not require overhead work. Mr. Jones
offered that he became aware of claimant's physical problems
when he and other co-workers were told by the supervisors to
help her if she asked for help to perform her duties.
Nemat Emamian, the second shift supervisor at the
plant, also testified for defendants. He remembered that
claimant reported a work injury on a Monday, but that she
also told him that she had had shoulder problems for the
past two years. Mr. Emamian did not think that claimant had
sustained a work injury because she had been to see her
family physician. Later, claimant was sent to the company
physician, Dr. Smith.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant
sustained an injury on October 5, 1990, which arose out of
and in the course of her employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on October 5,
1990, which arose out of and in the course of her
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Page 5
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
Claimant's job required her to fill an agitator tank
with liquid glaze. To perform this job, claimant used a
five gallon bucket and a three foot stepladder to gain
access to the opening of the tank. Although the company
taught and encouraged employees to use hoses instead of
buckets to fill the tanks, the bucket provided a quicker
method to perform this particular job duty. Claimant stated
that she had to refill the agitator tanks anywhere from one
to five times per day.
Claimant's description of the injury has remained
consistent throughout the medical records.
After considering claimant's job duties and recognizing
that she had physical problems prior to the October 5, 1990
incident, it is found that claimant did sustain an injury
which arose out of and in the course of her employment. The
injury is consistent with the type of work claimant
performed on a daily basis.
Likewise, claimant was attending to her duties at the
appropriate location and during her assigned shift. She was
performing her duties in a manner consistent with the
requirements of the job, and it is found that claimant's
injury was in the course of her employment.
Therefore, claimant has sustained her burden of proof
and has shown that she sustained an injury on October 5,
1990, which arose out of and in the course of her
employment.
The next issue to be address is whether there is a
causal relationship between claimant's injury and her
alleged disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of October 5,
1990, is causally related to the disability on which she now
bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Page 6
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
Dr. Smith, who both treated and evaluated claimant,
offered his opinion that claimant's rotator cuff tendinitis
was caused by her work at Midland. Results of his
evaluation led Dr. Smith to give claimant a 4 percent
permanent impairment of the right upper extremity.
Dr. Bashara also established a nexus between claimant's
work activities at Midland and her condition of a slight
tear of the rotator cuff and chronic rotator cuff
tendinitis, and gave claimant and 8 percent permanent
impairment of the right upper extremity.
Likewise, Dr. Johnson related claimant's symptoms to
the lifting, pushing and pulling activities she performed at
work.
As a result, it is found that claimant has sustained
her burden of proof, and has shown by a preponderance of the
evidence that there is a causal relationship between her
injury and a permanent disability.
The next issue to be addressed is the nature and extent
of claimant's permanent disability.
When disability is found in the shoulder, a body as a
whole situation may exist. Alm v. Morris Barick Cattle Co.,
240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
Page 7
(App. 1982), a torn rotator cuff was found to cause
disability to the body as a whole.
Claimant has sustained injury to the rotator cuff;
therefore, she has sustained an injury to the body as a
whole. As such, an evaluation of her industrial disability
is warranted.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
Page 8
(Appeal Decision, March 26, l985).
At the time of the hearing, claimant was 31 years of
age. Although not working full time, she was attempting to
start a house cleaning business.
Claimant's work history is unstable. Although she has
held a number of jobs, she has limited experience in
maintaining full-time employment for an extended period of
time. Claimant's motivation to acquire and maintain
employment is questionable.
Her past medical history for the last twelve years
reveals a woman who regularly sought medical treatment for
various ailments. She has been treated for neck and
shoulder problems in the past which she related to stress.
Midland required pre-employment physicals which claimant
passed in June of 1990. Her current physical health is good
although she has a permanent disability between 4 and 8
percent to the shoulder.
Midland's response to claimant's injury, treatment, and
her resulting work restrictions appears to be very informal.
Although the company continued to employ claimant, attempts
at accommodating her restrictions such as telling her to get
help if and/or when she needed it were casual, at best.
Yet, claimant quit of her own volition. No doctor ever
recommended or advised her to seek other employment. It is
puzzling that claimant indicated her job required lifting of
more than 30 pounds, yet the tiles weighed two pounds or
less and claimant was provided with other means to perform
the job demanding the heaviest lifting, cleaning the
agitator tank. Additionally, it seems claimant's job at the
plant required little overhead work.
Claimant's restrictions will, however, prevent her from
performing some jobs she has had in the past, such as child
care for larger children.
Although difficult to evaluate actual loss of earnings
due to claimant's unstable work record and due to her
limited income from a newly formed business, it would appear
that claimant's income while at Midland ($6.89 per hour) and
the average of other wages earned in the past ($5.00 per
hour) would total actual loss of earnings of 28 percent.
After considering all of the factors that comprise her
loss of earning capacity, it is found that claimant has
sustained a 15 percent industrial disability.
Another issue issued on the hearing assignment order is
claimant's correct workers' compensation rate, although the
undersigned is confused as to why this has been disputed.
The parties agree that claimant's gross weekly earnings
total $265.09 per week. They also agree that she is single
and is entitled to three exemptions. Pursuant to the 1990
Guide to Iowa Workers' Compensation Claim Handling, her
correct workers' compensation rate is $174.74 per week.
Claimant's entitlement to medical benefits is also
Page 9
disputed. And, although defendants raise the issue of
whether the expenses were authorized, they have denied
liability and therefore cannot raise authorization as a
defense.
Iowa Code section 85.27 provides the following
guidance:
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
As claimant sustained a compensable work injury, she is
entitled to medical benefits under the appropriate code
section.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant permanent partial
disability benefits for seventy-five (75) weeks at the rate
of one hundred seventy-five and 74/100 dollars ($175.74)
commencing on February 18, 1991.
That defendants shall pay medical benefits incurred by
claimant to treat the work-related injury.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Page 10
Copies To:
Mr Harry Dahl III
Attorney at Law
974 73rd St Ste 16
Des Moines IA 50312
Ms Dorothy L Kelley
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
5-1803
Filed September 15, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LORA CLAYTON, :
:
Claimant, :
:
vs. :
: File No. 974059
MIDLAND INTERNATIONAL :
TILEWORKS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant sustained an injury to the rotator cuff.
Industrially, her loss was 15% based on analysis of relevant
factors: 31 years of age; no motivation to work; impairment
ratings of 4% and 8%; and, sporadic history of manual labor
employment.
5-1800
Filed February 28, 1992
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
LAURIE LAPPIN, :
:
Claimant, :
:
vs. :
: File No. 974061
UNIVERSAL HOME HEALTH CARE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CONTINENTAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1800
Claimant was injured while working as a nurse's aide.
The employer offered work that accommodated her
restrictions, but offered less hours than the average number
of hours she worked prior to the accident.
Claimant awarded 15% industrial disability.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LOU ANN HACKFORT, :
:
Claimant, :
:
vs. :
: File No. 974069
PAT'S CASINO CAFE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
IOWA MUTUAL INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Lou Ann
Hackfort, claimant, against Pat's Casino Cafe, employer, and
Iowa Mutual Insurance, insurance carrier, defendants, to
recover benefits under the Iowa Workers' Compensation Act as
a result of an alleged injury sustained on March 2, 1989.
This matter came on for hearing before the undersigned
deputy industrial commissioner on May 13, 1992, in Fort
Dodge, Iowa. The record was considered fully submitted at
the close of the hearing.
The parties are aware that the notice of assignment for
hearing, in accordance with the provisions of Iowa Code
section 86.19(1), ordered the defendants to arrange for the
attendance of a certified shorthand reporter and that a
certified shorthand reporter was not used to record this
contested case proceeding. The parties stipulated pursuant
to Iowa Code section 17A.10(2) that they waive the
requirements for recording oral proceedings and maintaining
the record of oral proceedings contained within Iowa Code
section 17A.12(7).
The parties further stipulated that no official
verbatim record of the oral proceeding will be made or
maintained and that for purposes of review or appeal the
only official record of the oral proceeding will be the
exhibits received into evidence and the written decision of
the undersigned deputy industrial commissioner,
The record in this case consists of joint exhibits 1
through 13 and A through Q. The claimant was present and
testified. Also present and testifying were Ruby Heun and
Patricia Wieland.
issues
Pursuant to the prehearing report and order dated May
Page 2
13, 1992, the parties have presented the following issues
for resolution:
1. Whether claimant sustained an injury on March 2,
1989, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury is a cause of temporary
and permanent disability;
3. The extent of entitlement to weekly compensation
for temporary total disability or healing period benefits;
4. The time off work for which claimant now seeks
either temporary total disability or healing period
benefits;
5. The extent of entitlement to weekly compensation
for permanent disability;
6. The commencement date for permanent partial
disability, in the event such benefits are awarded; and
7. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27.
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on December 22, 1953, and completed
the twelfth grade of school. She obtained a nurse's aide
certificate after completing a 12-week course in 1979.
After graduation she worked on the family farm for two
years. After receiving her nurse's aide certificate she
worked as a nurse's aide and home health aide in Carroll,
Iowa. In January 1989 she commenced working for employer as
a dishwasher/cook's assistant. In March 1992, she became a
full-time cook with employer. Claimant testified that while
working for Carroll Health Center, she hurt her back.
Surgery was performed on August 26, 1988. She stated that
she reinjured her back on March 2, 1989, in the process of
leaning over the kitchen sink cleaning chickens for 20
minutes. She lost no time from work as a result of this
alleged injury until April 1990 when she took time off to
rest her back. At the time of the March 1989 injury,
claimant was earning $3.57 per hour and now earns $4.25 per
hour.
The pertinent medical evidence of record reveals that
claimant was referred by Robert Christensen, M.D., to John
L. Greene, M.D., neurological surgeon for evaluation on
August 18, 1988. She presented with complaints of low back
and right buttock pain radiating down the posterior thigh
and calf towards the foot and the right great toe. An MRI
and CAT scan showed a herniation of the fifth lumbar disc on
the right extending out into the foramen (exhibit 3, page
Page 3
10).
Dr. Greene admitted claimant to Bishop Clarkson
Memorial Hospital on August 25, 1988, and a laminotomy and
microdiscectomy at L-5 on the right was performed.
Postoperatively, she had relief of right lower extremity
pain. She was discharged on August 31, 1988, with final
diagnosis of herniated fifth lumbar disc (exs. 3 and 4).
On November 30, 1988, claimant was seen by Charles
Denhart, M.D., for evaluation. On examination, she appeared
in no acute distress. She had a normal gait and was able to
heel and toe walk without difficulty. Her range of motion
was restricted. She was able to bend forward to about 70
degrees, backwards to 20 degrees and side-to-side 20
degrees. Based on surgery and decreased range of motion,
Dr. Denhart gave her a permanent partial disability rating
of 10 percent. She was restricted from repeated bending
over, squatting or crawling and lifting more than 40 pounds
occasionally and 25 pounds frequently (ex. 5).
Claimant began working in a light duty position at
Carroll Health Center on November 14, 1988. However, she
was terminated from employment by the nursing home allegedly
because they had no permanent need for her position. On
January 26, 1989, she started part-time employment with
Pat's Casino. She began full-time duties at the cafe on
February 15, 1989. Her work hours were from 8 a.m. to 3:30
p.m. On March 17, 1989, claimant met with David Mitchell,
rehabilitation consultant, and stated that everything was
going fine and the people with whom she worked were flexible
(ex. 10, p. 95). On May 17, 1989, Mr. Mitchell closed
claimant's case file because she expressed satisfaction with
her work as a kitchen helper and dishwasher and she had
declined to look for any other jobs (ex. 10, p. 101).
Claimant underwent physical therapy from August 12,
1988 through January 23, 1989. She received no medical
treatment thereafter until September 7, 1989, when Raymond
Meylor, chiropractor, referred claimant to Thomas Ferlic,
M.D., for evaluation. Claimant presented to Dr. Ferlic with
complaints of intense pain in her right back, groin, hip,
and buttock. Claimant related to Dr. Ferlic that a few
weeks prior to this visit, she was cleaning chickens at work
and developed intense pain afterwards. Clinical findings
revealed right-sided sciatica. Medication and a stretching
program were prescribed (ex. 11).
On March 22, 1990, claimant was examined by Robert
Carlstrom, M.D. Claimant presented with complaints of pain
in her back radiating to the left groin, right groin and
posteriorly down the left leg. On examination, she had
diminished range of motion of her neck and negative straight
leg raising. Her neurological examination was normal except
for possibly a slightly diminished left achilles reflex.
Dr. Carlstrom reviewed an MRI scan taken on September 19,
1989, and a CT scan taken on December 20, 1989, and found
both studies inconclusive (ex. 12, p. 104).
Claimant was admitted to Iowa Methodist Medical Center
Page 4
on September 10, 1990, for a myelogram. According to Dr.
Carlstrom, the myelogram showed definite abnormalities at
L4/5 and possibly at L3/4. However, the CT scans did not
look as bad as the myelogram. Dr. Carlstrom decided to
continue conservative management of claimant's back problem
(ex. 12, p. 108).
Claimant was seen at the Meylor Chiropractic Clinic on
December 18, 1989, with complaints of left lumbar and
bilateral leg pain. Dr. Meylor reported the date of injury
as December 16, 1989 (ex. 12, p. 127). Dr. Meylor
subsequently treated claimant, however, his note are
illegible and unreadable. On July 10, 1991, Dr. Meylor gave
claimant a 26 percent impairment rating (ex. 12, pp.
153-154).
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on March 2,
1989, which arose out of and in the course of her
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904,
908 (Iowa 1976); Musselman v. Central Telephone Co., 154
N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An
injury occurs in the course of the employment when it is
within the period of employment at a place the employee may
reasonably be, and while the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The Supreme Court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the Court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of March 2,
1989, is causally related to the disability on which she now
bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Page 5
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id., at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).
When an aggravation occurs in the performance of an
employer's work and a causal connection is established,
claimant may recover to the extent of the impairment.
Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106
N.W.2d 591, 595 (1960).
The Iowa Supreme Court cites, apparently with approval,
the C.J.S. statement that the aggravation should be material
if it is to be compensable. Yeager v. Firestone Tire &
Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S.
Workmen's Compensation sec. 555(17)a.
Our supreme court has stated many times that a claimant
may recover for a work connected aggravation of a
preexisting condition. Almquist v. Shenandoah Nurseries,
218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v.
Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek
v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz
v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369,
112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co.,
252 Iowa 613, 106 N.W.2d 591 (1960).
The evidence clearly demonstrates that claimant
suffered a back injury in August 1988 which required surgery
on August 26, 1988. Claimant returned to light duty on
November 14, 1988, and was terminated in January 1989. She
commenced working part-time for employer on January 26,
1989, and full time on February 15, 1989. She continues to
Page 6
work for employer and has lost no time from work as the
result of an alleged injury on March 2, 1989. Claimant
testified that she reinjured her back on March 2, 1989, when
she was leaning over a sink cleaning chickens. The medical
evidence is silent as to any treatment or complaints to
physicians at or near the time of the alleged injury. In
fact, when interviewed by a rehabilitation consultant on
March 17, 1989, claimant indicated that everything was just
fine and that she was not having any problems at work.
The record contradicts claimant's testimony as to her
alleged injury date. She told Dr. Ferlic in September 1989
that she strained her back a few weeks prior. She told Dr.
Meylor in December 1989 that she strained her back on
December 16, 1989. Claimant's testimony is not supported by
the evidence. No physician who has treated and examined
claimant attributes her current symptoms to a work-related
injury with employer on March 2, 1989. The veracity of
claimant's testimony concerning a March 2, 1989, injury is
suspect. Numerous inconsistencies in claimant's testimony,
her inability to remember certain events, and the conflict
between claimant's testimony and other credible evidence in
the record, casts doubt on claimant's credibility.
Claimant's inconsistent statements make it impossible to
support a recovery in this case. It is therefore found that
claimant has not met her burden of proof that she sustained
an injury on March 2, 1989, arising out of and in the course
of employment with employer.
This issue is dispositive of the entire case and
further analysis in unnecessary.
order
THEREFORE, IT IS ORDERED:
Claimant shall take nothing from these proceedings.
The costs of this action are assessed to claimant
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of May, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Joseph Halbur
Page 7
Attorney at Law
529 N West St.
Carroll, Iowa 51401
Mr. Jeffrey Minnich
Mr. Patrick Hall
Attorneys at Law
PO Box 367
Carroll, Iowa 51401
Page 1
51402.20
Filed May 27, 1992
Jean M. Ingrassia
before the iowa industrial commissioner
____________________________________________________________
:
LOU ANN HACKFORT, :
:
Claimant, :
:
vs. :
: File No. 974069
PAT'S CASINO CAFE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
IOWA MUTUAL INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51402.20
Claimant failed to prove by a preponderance of the evidence
that she sustained an injury on March 2, 1989, arising out
of and in the course of employment with employer.